Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : DONALD E.C. LEICHT GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Kokomo, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

TIMOTHY L. GABBARD , ) ) Appellant

- Defendant , ) ) vs. ) No. 34A02

- 1112

- CR

- 1174 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges , Judge Cause No. 34D01

- 1003

- CM

- 2 23 Cause No. 34D01

- 1011

- FD

- 1002 Cause No. 34D01

- 1101

- FD

- 30 Cause No. 34D01

- 1104

- FD

- 318
July 24, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION CRONE, Judge2 Case Summary Timothy L. Gabbard pled guilty to receiving stolen property and admitted to vio lating his probation for the third time. The trial cour t revoked his probation for his remaining
sent ence under the previous charges and ordered the sentence for the new charge to be served consecutively. On appeal, Gabbard contends that the sentence imp osed by the trial court is inappropriate. We affirm. Facts and Procedural History At the age of twenty

- two, Gabbard has accumulated numerous juvenile arrests and nine adult convictions, two of which are felonies. Appellant’s App. Confidential Vol. 2 at 6. On April 6, 2011, Gab bard pled guilty to class A misdemeanor battery under cause number 34D01

- 1011

- FD

- 1002 (“Cause 1002”) , for which the court imposed a two

- year suspended sentence, and to class D felony possession of a controlled substance under cause 34D01

- 1101

- FD

- 30 (“Cause 30”) , for which the court imposed a consecutive four

- year suspended
sentence. T he trial court also extended his probation for class A misdemeanor possession of marijuana under cause number 34D01

- 1003

- CM

- 223 (“Cause 223”) , for whic h he had originally received a sentence of one year of supervised probation . Gabbard failed to report to probation under Cause 1002 and Cause 30

. O n April 18, 2011, the State charged Gabbard with class D felony possession of marijuan a and receiving stole n property under cause number 3 4D01

- 1104

- FD

- 318 (“Cause 318”). On November 1, 2011, Gabbard pled guilty to class D felony receiving stolen property and admitted to violating his probation for the third time

. The plea agreement left the sentence to the tr ial court ’s decision.3

During the sentencing hearing , o n November 30, 2011, Gabbard offered two exhibits, a letter of completion of a self

- direction program and his GED practice test results

. He completed both programs during his eight

- month incarcerati on prior to sentencing

. In addition, Gabbard and his counsel provided character statement s. T he trial court acknowledged Gabbard ’s criminal history and that he was already on supervised probation as aggravating factors an d found no mitigating factors. T he trial court revoked and executed the balance of Gabbard’s suspended sentences under Cause 223, Cause 30 , and Cause 1002 for a total of 487 days . The trial court also imposed a sentence of three years executed in Cause 318 and ordered Gabbard to serve t hat sentence consecutive to the revoked sentences. Gabbard now appeals. Discussion and Decision Gabbard contends that the sentence imposed by the trial court is inappropriate and

se eks review under Indiana Appellate Rule 7(B) , which provides that we may r evise a sentence authorized by statute if, after due c onsideration of the trial court’ s decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. This Court has long recognized the “speci al expertise of the trial bench in making sentencing decisions.” Shouse v. State , 849 N .E.2d 650, 660 (Ind. Ct. App. 2006). However, “ [ w ] hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defend ant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State , 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant has the burden to “persuade the appellate court that4

his or her s entence has met th[e] inappr opriateness standard of review.” Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). “Regarding the nature of the offense, the [advisory] sentence

... is the starting point the Legislature has selected as an appropriate senten ce for the crime committed.” Id . at 1081.

“ A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one

- half ( 11⁄2)
years. ” I nd

. C ode § 35

- 50

- 2

- 7

. We agree with Gabbard ’s assertion that receiving stolen property is not a violent offense. However, not only did Gabba rd receive the stolen property, but he also transported the thief around during the commission of the theft. Appellant’s App. Confidential Vol. 2 at 6. As for the character of the off ender, his extensive criminal history speaks for itself. Gabbard has acquired nine adult criminal convictions at the age of twenty

two, which is more than most repeat offenders will possess in a lifetime. His failure to report to probation and his commission of a new crime two weeks after the trial court sente nced him for the previous crime shows his consistent and blatant disregard for authority , and his lack of desire to follow the laws of our State. Given the facts surrounding the nature of the offense and the character of the offender , the trial court appropriately imposed the maximum
sentence. Accordingly, Gabbard has failed to p ersuade us that his sentence is inappropriate

. 1

1 To the extent Gabbard challenges the court’s execution of his suspended sentences under Indiana Appellate R ule 7(B), that is the improper standard. “A trial court’s sente ncing decisions for probation violations are reviewable using the abuse of discretion standard.” Prewitt v. State , 878 N.E.2d 184, 188 (Ind. 2007). Gabbard has failed to establish an abuse of discretion. Also, to the extent Gabbard contends that the court abused its discretion in failing to consider his completion of the self

- direction program and his GED practice test results as mitigating circumstances, he has not developed an argument on this point.5

Gabbard also asserts that th e trial court’s imposition of a consecutive sentence was inappropriate

. T he trial court was statutorily required to do so

. Indiana Code Section 35

- 50

- 1

- 2(d)(1) provides that: [I ]f, after being arrested for one (1) crime, a person commits another crime: be fore the d ate the person is discharged fro m probation, parole, or a term of imprisonment imposed for the first crime ... the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sente nces are imposed. Gabbard committed the instant crime of class D felony receiving stolen property two weeks after t he trial court extended Gabbard’s probation under Cause 1002 and Cause 30

. Not only was the trial court appropriate in ordering a consecut ive sentence, it was obligated to. Affirmed. VAIDIK, J., and BRADFORD, J., concur.